A TV ad and a national press ad for Sky broadband, seen in July 2016:
a. The TV ad began with an animated dog playing an online music video and asking her friends to dance with her as the music played in the background. One agreed to dance with her, but at that moment the music skipped and then stopped, and the video image broke up and froze. The dog said, “Oh no … bad broadband! Bad!” She jumped up and down on the wifi router, which started smoking. Her friend said, “You need Sky broadband … It’ll keep you dancing all night long.” A voice-over stated, “Switch to super reliable Sky broadband” over on-screen text which stated “Super Reliable Sky Broadband”.
b. The national press ad included the claim “Super Reliable Sky Broadband Unlimited”.
Virgin Media Ltd challenged whether the claims in both ads that Sky broadband was “Super Reliable” were misleading and could be substantiated.
Sky UK Ltd t/a Sky said the references to “Sky Broadband” in the ads related both to their ADSL2+ and fibre broadband packages. They believed consumers would understand the claims that their broadband service was “Super Reliable” to mean that the service was very reliable and could be trusted to work well. They did not think the claims would be understood to be a comparison with the reliability of broadband services of other providers. Sky considered their “Super Reliable” claim was substantiated by evidence relating to their overall performance and complaints performance.
In relation to overall performance, Sky referenced data from Ofcom’s “UK Home broadband performance: The performance of fixed-line broadband delivered to UK residential consumers” report, published in March 2016, which they considered related to factors affecting the overall reliability of a broadband service: latency; jitter; packet loss; peak-time performance; and daily disconnections.
A connection with a low rate of latency (the time taken for a data packet to travel to a third-party server and back) would feel more responsive for simple tasks like web browsing. A lower measure of jitter (the rate of change of latency) would indicate that a connection was more stable, and latency would be important to gamers and users of Voice-over-Internet-Protocol (VoIP) services. Packet loss, which measured the proportion of data packets lost in transmission over a connection, was important to online gamers and those streaming content of using VoIP, as extended period of loss led to choppy and broken-up video and audio. Sky highlighted that the report showed that Sky Broadband (comprising both Sky Fibre and ADSL2+ services) had lower latency than some providers, low jitter and low packet loss.
They also highlighted that the report showed that their Sky Fibre service (provided through their own ‘fibre-to-the-cabinet’ network) delivered the best relative peak-time performance for “up to 38 Mb” and higher connections compared to their competitors. Sky Broadband services also had fewer daily disconnections than TalkTalk. They said they considered Sky Broadband was very reliable because it outperformed even significantly faster services.
In relation to their complaints performance, Sky said it was a reverse measure because it substantiated a negative rather than a positive, as it captured reports of faults and service issues. They said there was a clear difference between providers in this area: Sky generated the lowest relative complaint volumes compared to the other fixed broadband providers considered by Ofcom in its telecoms and pay TV complaints reporting. Sky Broadband customers raised five times fewer complaints than BT customers.
Sky considered the above factors substantiated the premise that Sky Broadband services variously performed in a way that was notable and not merely average. As such they considered Sky Broadband was a “super reliable” service. They noted it was possible for more than one provider to make a “super reliable” claim.
Clearcast, responding in relation to the TV ad, only, said they had received documentation from Sky which showed that broadband network availability throughout 2015 was above 99.6%. Clearcast understood that outage at certain times was inevitable, and in the absence of a technical or concrete definition of “super reliable”, they felt that in the context in which it appeared the claim was not misleading. Clearcast said they felt confident that the data Sky had provided was adequate to support the claim.
Clearcast highlighted that no competitors were mentioned by name or otherwise, and felt that the language used was measured and avoided any indication of a comparison with other broadband providers. They felt viewers would be unlikely to take the claim as a comparison with other providers.
The ASA considered consumers would understand the claim “Super Reliable Sky Broadband” as it appeared in ad (b) to be a general claim about the overall reliability of all of Sky’s broadband packages, and would expect a “super reliable” broadband service to deliver a consistent connection with very few interruptions or slowdowns. To support such a claim we expected to see evidence which showed that all of Sky’s broadband services delivered consistency in all measurable factors of relevance.
The TV ad, ad (a), featured a scene in which a streamed music video failed to play smoothly, which we considered consumers would understand as an example of an ‘unreliable’ broadband connection. We acknowledged that the ad included the same claim that appeared in ad (b) - “Super Reliable Sky Broadband” - in on-screen text, but noted that at the same time the voice-over stated, “Switch to super reliable Sky broadband”. We considered that in the context of an ad which showed an example of an ‘unreliable’ broadband service and encouraged viewers to “switch” to Sky’s “super reliable” service, viewers were likely to interpret the claim as a comparison with other broadband providers – that Sky’s “super reliable” service was more reliable than that of its competitors. We expected to see evidence which showed that all of Sky’s broadband packages delivered, on balance, a more consistent connection than those of the comparable packages of a significant number of their competitors.
We reviewed the evidence Sky had provided on the basis of whether it substantiated, firstly, the non-comparative claim “Super Reliable Sky Broadband” in ad (b), and secondly, the comparative claim “Switch to super reliable Sky broadband” in ad (a).
With regard to Sky’s ‘complaints performance’, we acknowledged the information they had provided in relation to the relative number of customer complaints about Sky’s broadband services compared to those about their competitors’ services. However, we noted the Ofcom report from which those statistics were taken did not break down the data any further and it was therefore not possible to determine the proportion of complaints which related to ‘reliability’ factors rather than, for example, issues around customer service or billing. We therefore concluded that the complaints performance data was not relevant in substantiating the basis of either the non-comparative or the comparative claim about the reliability of Sky’s broadband services.
The Ofcom report was based on data taken from a panel of UK residential broadband users, comparing the performance of popular ISP broadband packages delivered over ADSL (broadband delivered over a standard telephone line), fibre and cable. We noted the metrics Sky had highlighted in the Ofcom report and agreed that they measured factors which related to consumers’ expectations of “reliability”. The Ofcom report included data about additional metrics relating to the performance of broadband services (web browsing speed, DNS resolution and DNS failure), but we were satisfied that the metrics Sky had referred to were the key metrics relevant to consumers’ expectations of “reliability” as delivered by their broadband provider.
We understood Virgin Media were concerned that the report might not include all relevant data, because they believed that data from some panellists might have been excluded for reasons relating to “reliability”. For example, that where panellists were excluded due to missing measurements, those measurements might have been missing due to technical issues such as of the line being disconnected. We understood from Ofcom that data from 761 of 2,151 panellists had been excluded, but that those exclusions did not relate to technical issues with their broadband connections. We further understood that Ofcom weighted the samples to ensure that the data from different ISPs could be accurately compared.
The report included data relating to Sky’s three broadband services: their ADSL2+ service; “Sky Fibre” (“up to 28 Mbit/s” fibre-to-the-cabinet service); and “Sky Fibre Max” (“up to 76Mbit/s” fibre-to-the-cabinet). The report compared data from the ADSL2+ packages of five ISPs in competition with Sky’s ADSL2+ package, packages from five ISPs with similar “up to” speeds to Sky’s ‘Sky Fibre’ package, and five packages from four competitor ISPs with speeds of “up to 76Mbit/s” or more.
With regard to peak-time performance, we considered consumers were likely to be aware that speeds might reduce during hours of peak-time use (defined by Ofcom as 8 pm to 10 pm on weekdays), but would expect that a “super reliable” service would achieve speeds close to the maximum they would normally experience. All three Sky broadband services delivered average peak-time speeds which were over 90% of their average maximum speeds. However, only 54% of Sky’s ADSL2+ panellists received more than 90% of their maximum speeds during peak-time, compared to 89% for Sky Fibre and 87% for Sky Fibre Max panellists. We considered the evidence showed that Sky’s two fibre packages delivered adequate consistency between peak-time and maximum speeds, but that its ADSL2+ package did not deliver adequate consistency to be considered “super reliable” for a significant proportion of Sky panellists.
In comparison to other ISP packages, there were no statistically significant differences between the average peak-time speed of Sky’s ADSL2+ package and those of their competitors. However, Sky’s ADSL2+ package performed worst in relation to the proportion of panellists receiving more than 90% of their maximum speeds during peak-time. Sky’s two fibre connections performed better, or the same as, other packages in terms of average peak-time speeds as a percentage of their maximum speeds. We considered Sky’s ADSL2+ package was less consistent than that of its competitors, but that its fibre packages had about the same level of consistency as its competitors.
We considered consumers would also expect broadband services described as “super reliable” to have a very limited number of disconnections. We noted that all three of Sky’s broadband services had an average of fewer than one disconnection per day over the course of the testing period of one month, with the two fibre services showing an average of fewer than 0.3 disconnections per day. The lengths of those disconnections were fairly evenly spread between disconnections which could last from 30 to 60 seconds, one to two minutes, and two minutes or longer. We considered all three of Sky’s broadband packages had a very limited number of disconnections. With regard to comparable packages from other ISPs, Sky’s three broadband packages had an average performance, both in terms of the number of daily disconnections and their duration.
We considered consumers would expect broadband services described as “super reliable” to have generally good responsiveness including for browsing, gaming, streaming and VoIP. We understood that latency, jitter and packet loss all could have an effect on those functions.
With regard to latency, which was commonly measured in milliseconds, Sky’s two fibre packages had latency of just over 13 milliseconds, with little difference between average and peak-time performance. The ADSL2+ package had latency of around 20 milliseconds, again with little difference between average and peak-time performance. In comparison with other packages, Sky’s ADSL2+ package matched that of three of its competitors, and showed better performance than two competitors. Both Sky Fibre and Sky Fibre Max outperformed some competitor packages to a statistically significant degree, and were not outperformed by any competitor packages.
With regard to packet loss, all three of Sky’s packages showed quite consistent performance between average and peak-time levels of packet loss, with a less than 0.25% data loss on the ADSL2+ package, and less than 0.05% data loss on the two fibre packages. Sky’s ADSL2+ package did not have significantly better performance than any competitor packages. Sky’s fibre packages outperformed a greater number of competitor packages, and were not outperformed by any competitor packages.
With regard to jitter, we understood that VoIP devices often included a ‘jitter buffer’ of around 20 milliseconds, meaning that there would effectively be no noticeable effect for the end-user so long as jitter remained below 20 milliseconds. All of Sky’s packages (and those of their competitors) showed both upstream and downstream jitter, on average and during peak-time, of much less than 20 milliseconds: all of Sky’s packages were quite consistent between average and peak-time, with less than 1.1 millisecond upstream and downstream jitter for the ADSL2+ package and less than 0.46 millisecond upstream and downstream jitter for its fibre packages. Sky’s ADSL2+ package did not outperform any of its competitors and it also wasn’t outperformed by any competitor (upstream), whereas it was outperformed by one competitor in relation to downstream jitter and did not outperform any other competitors. Both of Sky’s fibre packages outperformed several competitor packages and were not outperformed (upstream), whereas on downstream jitter both Sky fibre packages outperformed a few competitor packages but the Sky Fibre package was outperformed by all of Virgin Media’s packages.
We considered that overall the Ofcom data demonstrated that Sky’s two fibre packages, Sky Fibre and Sky Fibre Max, delivered consistency in all measurable factors of relevance, and that Sky’s ADSL2+ package delivered consistency in all but one factor of relevance (achieving more than 90% of maximum speed during peak-time). We concluded the non-comparative “Super Reliable Sky Broadband” claim in ad (b) was therefore likely to mislead consumers, because it implied that all of Sky’s broadband packages were “Super Reliable” when that was not the case for Sky’s ADSL2+ package.
With regard to the comparative claim “Switch to super reliable Sky broadband” in ad (a), we considered that the Ofcom data demonstrated that Sky’s broadband packages delivered a similarly consistent connection to that of the comparable packages of their competitors, but did not deliver a more consistent connection. We therefore concluded the comparative claim “Switch to super reliable Sky broadband” in ad (a) was likely to mislead consumers.
Ad (a) breached BCAP Code rules 3.1 3.1 Advertisements must not materially mislead or be likely to do so. (Misleading advertising), 3.7 3.7 Advertisements must not falsely imply that the advertiser is acting as a consumer or for purposes outside its trade, business, craft or profession. Advertisements must make clear their commercial intent, if that is not obvious from the context. (Substantiation), 3.10 3.10 Advertisements must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify. (Qualification), 3.12 3.12 Advertisements must not mislead by exaggerating the capability or performance of a product or service. (Exaggeration) and 3.33 3.33 Advertisements that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, consumers about either the advertised product or service or the competing product or service. (Comparisons with identifiable competitors).
Ad (b) breached CAP Code (Edition 12) rules 3.1 3.1 Advertisements must not materially mislead or be likely to do so. (Misleading advertising), 3.7 3.7 Advertisements must not falsely imply that the advertiser is acting as a consumer or for purposes outside its trade, business, craft or profession. Advertisements must make clear their commercial intent, if that is not obvious from the context. (Substantiation), 3.9 (Qualification), 3.1 3.1 Advertisements must not materially mislead or be likely to do so. (Exaggeration), and 3.33 3.33 Advertisements that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, consumers about either the advertised product or service or the competing product or service. (Comparisons with identifiable competitors).
The ads must not appear again in the form complained of. We told Sky UK Ltd not to use claims which implied that all three of their broadband packages were “Super Reliable” unless they held sufficient evidence to support the claim. We also told them not to use claims which implied that all of their broadband packages were more reliable than the similar packages of their competitors unless they held sufficient evidence to support the claim.